No Cameras

Thoughts on the Second Amendment, part IIIa

One curiosity regarding the issue of private ownership of firearms as a deterrent to oppression by state actors (and quasi-state actors) is the vehement opposition on the part of certain gun rights advocates regarding the United Nations' campaign to curb the illicit trade in small arms and light weapons (SALW). You might think that it's a fairly uncontroversial notion to try to prevent arms sales to warlords, terrorists and organized criminals, but if so, you aren't familiar with people like Wayne LaPierre (CEO of the NRA) and Dave Kopel. They have taken it into their heads that the aforementioned campaign is, in actual fact, directed largely at eliminating private ownership of firearms in the United States. If you don't believe it, buy Wayne LaPierre's book; sure, the list price is $25.99, but the man's done you a personal favor just by having written it, I tell you. Or you can get a free copy by joining the NRA (thereby helping to secure LaPierre's salary).

Predictably, this crap is founded on total ignorance regarding the United Nations; ignorance of the distinctions between the various bodies, ignorance of the powers accorded to those bodies, ignorance of how they operate and how they have exercised their powers in the past, etc. etc. Take this line from the "Book Description" of LaPierre's piece of drivel:

If you think there's no way an armed U.N. platoon of blue helmets can knock on your door to take your guns, this book just became your next must-read.

Please. Has LaPierre not read the papers lately? If he had, he would know that the Security Council cannot authorize the deployment of UN peacekeeping forces without the consent of the national government in question, which has been the primary obstacle to putting blue helmets on the ground in Darfur. And even though there's been a shift in thinking regarding actions under Chapter VII of the UN Charter in the past decade or so, there will never be Security Council authorization for a deployment onto United States territory for the simple reason that the US would veto such a move. It's curious how American conservatives will dismiss the UN as being nothing but an ineffectual "talking shop" with one breath, and then claim with the next that the organization not only wants, but is more than able to override the sovereignty of the world's only superpower.

But a question that needs to be asked is: why would any other country want to disarm the American citizenry? The United States isn't Afghanistan or Liberia, where gun violence has repercussions for other countries (refugees, regional destabilization, drug/diamond trade, etc.), and every country with an arms industry or stockpiles of military-surplus rifles is only too happy to export their weapons to the United States for sale on the civilian market. That's a long list: China (Norinco), Germany (Heckler & Koch, SIGARMS, Walther), Russia (Baikal and Remington's SPR line), Brazil (Taurus), Belgium (FN Herstal), Austria (Glock), Italy (the Beretta group), the Czech Republic (CZ), Serbia (Zastava, via EAA), Turkey (which manufactures shotguns and pistols for American and European companies). For such countries, ending private ownership of firearms in the United States would provide no benefit, and obvious losses in export revenue and jobs. Don't expect any coherent explanation from LaPierre and Kopel.

Kopel, for his part, seems detemined to prove that "the UN" (as if it were a monolithic entity) is evil, knowingly pursuing policies which will very probably result in mass murder, even genocide. An article from 2003, co-authored by Kopel and titled "When Policy Kills," has the following as its opening paragraph:

The spread of illicit arms and light weapons is a global threat to human security and human rights," insists United Nations secretary-general Kofi Annan. But it would be far more accurate to say: "The U.N.'s disarmament policy is a global threat to human security and human rights." It was the U.N.'s lethal policy that was directly responsible for the deaths of thousands of innocents in Srebrenica in 1995.

In 1993-1994, I worked on the S-3 Section (operations and training) of the headquarters of the parent brigade of all three rotations of Dutchbat to Srebrenica, and was tangentially involved in the deployment of the first two. I knew quite a few people from Dutchbat III, and naturally took an interest when the enclave was overrun in July 1995. From 1999 until 2001, while working at the ICTY, I provided technical support to investigators and prosecutors in the Krstić case (IT-98-33), making seized Bosnian Serb army documents available to them in searchable electronic format. In short, I know a thing or two about Srebrenica; certainly enough to state with authority that Kopel's article is a tendentious exercise in intellectual dishonesty, selectively citing evidence, quoting out of context, and obfuscating the order of events in order to support a predetermined conclusion.

Most importantly, let me address the claim that UN policy "was directly responsible" for the massacres which occurred in the wake of the VRS (Vojska Republike Srpske—the Bosnian Serb army) overrunning the Srebrenica enclave. Later in the article, Kopel and his co-authors cite the book Yugoslavia: Death of a Nation. They should, therefore, have been familiar with chapter 20 ("The Hottest Place") of that same book, from which I draw the following quotes (1996 edition, emphases in italics mine):

In March [1993], after hearing the news that the Srebrenica defenders had run out of ammunition, the Commander of the Bosnian army, Sefer Halilović, warned the UN Force Commander Philippe Morillon that a Serb offensive was about to begin, and that the Muslims in Srebrenica were in no position to defend their territory. [p. 266]

At the beginning of April [1993], the Serbs issued a surrender demand through the UNHCR. The Bosnian Army was given a forty-eight-hour ultimatum. The most senior UNHCR official in former Yugoslavia, José Maria Mendiluce, attended talks in the town of Bratunac, from where the assault on Srebrenica was commanded. "Either they surrender and you get all the Muslims out of Srebrenica," the Serb Commander, Ilić, told him, "or we take the town in two days." Mendiluce started making plans for the evacuation of an estimated 60,000 people. It was to be the biggest single act of ethnic cleansing since the conflict began, and it was to be carried out by the UN. Mendiluce made no effort to hide the moral repugnance with which he approached the task he was now expected to carry out. "We denounce ethnic cleansing worldwide," he said. "But when you have thousands of women and children at risk who want desperately to be evacuated, it is my responsibility to help them, to save their lives. I cannot enter into any philosophical or theoretical debate now. We just have to save their lives." [p. 268]

[On the night of April 14th], Serb forces pushed through the Bosnian lines to the south and east of the town. They stormed the village of Zeleni Jadar on the southern edge of town. The Bosnian defensive positions, such as they were, collapsed. The push brought the Serb ring-of-steel to the very edge of the town. From their hill-top positions, almost every street was visible. [Ham radio operator] Ibrahim Bećirević radioed to Sarajevo—again in coded messages—that the town was hours, rather than days, from collapse. [p. 271]

As the quoted passages illustrate, the ability on the part of the enclave's defenders to mount an effective resistance had ceased to exist well before the creation of the "Safe Area" in accordance with UN Security Council resolution 819, which was passed on 16-Apr-1993, at 2300 New York time (by which time it was already 0500 on the 17th in Bosnia). Kopel's assertion that the massacres would have been averted were it not for the UN's intervention is demonstrably false; indeed, they would have occurred 27 months earlier than they ultimately did, and might have been significantly more vicious, given the Serbs' rancor over the Muslim attacks on Serb villages surrounding the enclave over the previous winter.

For that matter, the assertion that the demilitarization of the Srebrenica "safe area" took place due to any UN policy is a fiction. Demilitarization of the enclave was a demand made by Ratko Mladić, commander of the VRS, in exchange for halting the assault; negotiations regarding the cease-fire and demilitarization between Mladić and Halilović took place in Sarajevo on 17-Apr-1993 (and lasted into the early hours of the 18th), but the arrangements for these negotiations had already been made prior to the passage of resolution 819 less than 12 hours earlier. It's worth noting that none of the resolutions establishing the Safe Areas (819, 824 and 836) call for disarmament of those within the Areas.

The very process by which the Safe Areas were created illustrates, moreover, how there is no monolithic "UN" which pursues policies with one mind. The following description is taken from Blood and Vengeance by Chuck Sudetic:

As dawn broke over Bosnia on Saturday, April 17 [1993], Sarajevo radio's morning news bulletin reported that the UN Security Council had just passed a resolution calling for the Serbs and the Muslims to treat Srebrenica as a UN "safe area." The choice of this term, "safe area," was a part of a diplomatic compromise. Led by Diego Arria of Venezuela, diplomats from countries that belonged to the Non-Aligned Movement and supported Bosnia's Muslim-dominated government, had summoned the Security Council members together at four o'clock Friday afternoon New York Time and demanded that the UN military force in Bosnia be given a mandate to fight to protect Srebrenica's people. They wanted the council to put Srebrenica under UN protection. When France, Britain and other European countries with troops in Bosnia inquired whether the countries of the Non-Aligned Movement would be willing to produce the soldiers and money needed to defend Srebrenica by force of arms, Arria and his colleagues agreed to scratch the words "protected area" from the draft resolution, and with them the demand for military action, and insert in their place the words "safe area."

The debate on this amended draft resolution dragged on for hours behind closed doors. The British and French delegations warned time and again that the UN Security Council should never make, or even seem to make, promises it could not keep; but the diplomats from the Non-Aligned movement countries refused to withdraw the resolution or delay the vote until after the negotiations on Srebrenica's demilitarization, which were to begin Saturday afternoon in Sarajevo. [...] The diplomats who wrote and voted in favor of UN Security Council resolution 819 did not bother to define the term "safe area" or identify just who was supposed to make it safe. The resolution did not delineate any territory. It did not hint at the duty the UN owed the safe area or the people inside it. [p.206]

Following the rejection of the Vance-Owen Peace Plan (VOPP) by the Bosnian Serb parliament on 06-May-1993, the Security Council passed resolution 824, declaring the towns of Žepa, Goražde, Bihać, Tuzla and Sarajevo to also be safe areas. Sudetic writes:

The countries of the Non-Aligned Movement seized the opportunity to renew their demand that the Security Council give the UN military force in Bosnia the mandate and the means to defend the safe areas if the Serbs attacked. This issue came to a head a month later, during the closed-door discussions preceding the passage of Resolution 836, the Security Council's most controversial decision concerning the Bosnian war.

[...]

France, Russia, Great Britain, and Spain, the very countries whose ambassadors had given the firmest public assurances that Resolution 836 would guarantee the security of Srebrenica and the other safe areas, had inserted language into the resolution that hollowed out the apparent duty of the UN military force to protect them. The resolution was intentionally crafted to say that the UN military force would only "deter" attacks against the safe areas; and the wording says nothing explicit about fighting to protect or defend them.

[...]

The frustrated diplomats from the Non-Aligned Movement countries understood that the resolution had no backbone. But they exacerbated the situation by demanding that, since the UN military force was not going to be required to defend the Security Council's safe areas, the council should at least require General Mladić to withdraw his forces from around the areas and allow Bosnia's army to maintain its presence inside them to provide a modicum of protection. The rest of the Security Council members accepted this compromise wording and thereby presented Muslim commanders with the opportunity to mount offensive operations from within the safe areas and leave it to the UN commanders on the ground to persuade Mladić that it was not a good idea to retaliate against the Muslims.

The commander of UN forces in the entire former Yugoslavia, a Swedish general named Lars Eric Wahlgren, warned the Security Council that garrisoning the Safe Areas with sufficient troops to provide a credible deterrent against Serb attack would require some 34,000 troops, at a projected annual cost of $1.7 bn. In this he was backed by the then-Under-Secretary-General for Peacekeeping Operations, Kofi Annan, as well as Secretary-General Boutros-Ghali. The Security Council, however, refused to listen, and plumped for the "Light Option," authorizing only 7,600 troops to man the Safe Areas. Or perhaps they did listen, since none of the member states on the council volunteered so much as one of their own soldiers for the job.

At this point, national pride and a certain measure of esprit de corps require that I respond to some more of Kopel's claims. First, this one:

A large share of the blame for Srebrenica was placed on the Dutch government and ill-prepared Dutch "peacekeepers," as detailed in an April 2002 report by the Netherlands Institute for War Documentation. Dutch prime minister Wim Kok — and his entire cabinet — resigned in shame a week later.

A quick perusal of the report summary shows that the report in fact attached no blame to Dutchbat III, stating:

It performed its task, but that came nowhere near the desired effect. This is  more the fault of the inadequate resources and the policy of the UN and UNPROFOR. Dutchbat grew less and less able to carry out its task.

Insofar as the report placed blame on the Dutch government, it was for committing the infantry battalions of the 11th Airmobile Brigade to a job that everybody else had refused to take. The report placed the blame for the massacre squarely where it belonged: at the door of the VRS. The report's conclusions, in and of themselves, were not sufficiently severe to cause the collapse of the "Purple 2" coalition government. The fact was that the coalition had already become unstable previously due to various internal conflicts, and the report was, depending on whom you ask, either the straw that broke the camel's back or a convenient pretext to pull the plug.

Later, Kopel claims:

[I]ndeed, on July 11, 1995, Bosnian Serb forces entered Srebrenica without resistance from Bosniac or U.N. forces; not a shot was fired.

This is technically correct, in that neither the ABiH 28th Operational Group nor UNPROFOR Dutchbat III fired a shot on 11-Jul-1995. Kopel, however, glosses over the fact that the VRS assault started five days earlier, and that during the intervening period both the Muslim and Dutch troops did, in actual fact, offer armed resistance to the VRS. From the aforementioned NIOD report, Part III, Chapter 6, Sections 10 and 12:

At around 05.00 hours [on 10-Jul-1995], the ABiH launched a counter offensive in the direction of Pusmulici, at the height of Zivkovo Brdo and Zeleni Jadar. Some ABiH units succeeded at Zivkovo Bdro to attack the rear of the VRS and to isolate them, while other units attacked the VRS as a decoy. The counter offensive was successful and forced the VRS to withdraw. [...] The joy amongst the ABiH was short lived. The VRS brought reinforcements and launched a fresh assault in the afternoon. In the battles that ensued, sections of the ABiH lines were unable to withstand the assault. According to ABiH reports, there was even hand-to-hand fighting. The VRS shelled the lines forcing large numbers of ABiH soldiers to abandon their positions. That resulted in disorganisation and breaking up of units. [...] The early-morning victory of the ABiH was therefore a temporary one and could not be turned into real gain and the effect of the ABiH counter offensive was lost.

[...]

At 19.13 hours [on 10-Jul-1995] Hageman [second in command of B-Company and commander of the Dutchbat blocking position] was instructed by [B-Company commander Captain] Groen to withdraw blocking position Bravo 1 in the direction of the city’s market square. After that the teams of blocking positions Bravo 3 and Bravo 4 also began to withdraw towards the market square in Srebrenica. [...] While withdrawing Bravo 4, Lieutenant Mustert ordered direct .50 machine gun fire on the VRS units across the open terrain on foot. His intention was to secure the withdrawal by forcing the VRS to take cover. [...] Bravo 3 received a report from the ABiH to the effect that approximately eighty VRS infantrymen were hidden behind the crest of a hill and would presently become visible. Hageman then instructed Lieutenant Van Duijn to fire over the heads of the VRS as soon as they appeared on the crest of the hill to make them aware of the UN positions. The Bosnian Serbs then retreated beyond the crest of the hill and out of sight. [...] Hageman ordered the Bravo 1 crew to fire the .50 machine gun over the heads of the Bosnian Serbs. After that they did indeed fire using approximately half a case of ammunition, before the APC in question pulled back to two hundred metres from the market square.

Evidently, Kopel needs to learn that when you cite a source, it's a good idea to actually read it first.

Kopel's piece is, frankly, simply incoherent. He asserts that "the U.N.'s disarmament policy" facilitated the Srebrenica massacre by stripping those inside the enclave of the means with which to defend themselves. Yet he also notes that "While the U.N. peacekeepers had collected some of the Bosniacs' weapons, the Bosniacs retained the better ones" with which, to paraphrase Sudetic, the Muslim commanders could mount offensive operations from within the safe areas, thereby inviting Serb retaliation. So according to Kopel, the safe areas were a death trap because those within had been disarmed, and because they had not. He holds up the Revolutionary United Front (RUF) of Sierra Leone as an example of an outlaw armed group against whom the UN failed to act effectively, but condemns the Programme of Action which is intended to make it more difficult precisely for groups like the RUF to acquire weapons. Evidently, Kopel approached this piece from a preconceived dislike of "the UN," and is seeking to rationalize it by latching onto any complaints (real or imagined) he can conjure up, even when those complaints are mutually exclusive.

As a former UN staff member, I would be the last to assert that the United Nations system is without its flaws. But to understand the mistakes "the UN" has made in the past, one has to understand how the system is set up, and this, critics of "the UN"—such as Kopel and LaPierre—refuse to do. First, one has to understand that "the United Nations" is not a monolithic entity, but is actually composed of almost all the nations of the world (hence the name). The Secretary-General's job is not to set policy, but to carry out the policy formed by those member states currently serving on the Security Council, and to make matters worse, the member states which take part in setting policy are not actually obliged to provide the means to implement it. The "Safe Areas" policy provides a highly illustrative example, with the Non-Aligned Movement pushing for a robust mandate but not willing to put their own troops in harm's way to enforce that mandate; and if Britain and France thought resolution 819 was such a bad idea, why didn't they just use their precious veto power to stop it? This is the biggest problem with the UN: the tendency of its member states to declare a collective responsibility to take action, but to shirk their individual share of that collective responsibility, and to blame "the UN" for failing to act (a process which Dutch journalist Linda Polman has described as "blue rinsing"). After all, when everybody is to blame, nobody is to blame; except, of course, whoever was fool enough to let himself get stuck actually trying to do the job everybody else said needed doing (but didn't want to do themselves).

Given this culture, it is not unreasonable to be skeptical about some large-scale initiative conducted under the aegis of the UN; to ask questions, like "what exactly do you mean by 'illicit'?" But LaPierre and Kopel aren't interested in asking questions because they've already made up their minds. By pointedly ignoring the presence of the word "illicit" in the name of the UN Conferences on the Illicit Trade in Small Arms and Light Weapons, they are deliberately missing the point; furthermore, by opposing any measures to limit access to firearms by terrorists and other organized criminals, they are being, to paraphrase George Orwell, objectively pro-crime.

Stephen de Wijze and the Ticking Bomb Scenario

Norman Geras recommends as a "must-read" a review by Stephen de Wijze of Karen Greenberg's The Torture Debate in America. I'm afraid I have to join Shuggy in being less than impressed with the piece. I can provisionally agree with De Wijze's conclusions, but I do take serious issue with a couple of the arguments he makes getting there, and I agree with Shuggy's later assessment that De Wijze is too soft on the arguments of the proponents of condoning torture. In particular, I disagreed with certain points he made concerning the "Ticking Bomb Scenario" (aka "TBS"), first mooted by Niklas Luhmann, a German sociologist, but made famous in America, in the wake of the 9/11 attacks, by Alan Dershowitz. De Wijze describes the TBS as follows:

[T]he core argument adopts the following formula. 1. The security forces have captured a terrorist who knows of a bomb which will detonate in the very near future 2. If the terrorist can be forced to reveal the whereabouts of the bomb the detonation can be prevented 3. The only way to achieve (2) is to use torture and thereby save many innocent civilian lives.

In a footnote, De Wijze links to the entry on torture in the Stanford Encyclopedia of Philosophy, which gives this example of the ticking bomb scenario:

A terrorist group has planted a small nuclear device with a timing mechanism in London and it is about to go off. If it does it will kill thousands and make a large part of the city uninhabitable for decades. One of the terrorists has been captured by the police, and if he can be made to disclose the location of the device then the police can probably disarm it and thereby save the lives of thousands. The police know the terrorist in question. They know he has orchestrated terrorist attacks, albeit non-nuclear ones, in the past. Moreover, on the basis of intercepted mobile phone calls and e-mails the police know that this attack is under way in some location in London and that he is the leader of the group. Unfortunately, the terrorist is refusing to talk and time is slipping away. However, the police know that there is a reasonable chance that he will talk, if tortured. Moreover, all their other sources of information have dried up. Furthermore, there is no other way to avoid catastrophe; evacuation of the city, for example, cannot be undertaken in the limited time available. Torture is not normally used by the police, and indeed it is unlawful to use it.

De Wijze continues:

Consequently, the TBS reveals a situation where the absolute prohibition against torture is shown to be wrong and opens the way to developing the conditions under which torture can be legally and morally justified in a liberal democratic society.

Many opponents of any legalization of torture, myself included, acknowledge that the Ticking Bomb Scenario provides a compelling argument for the use of torture in the circumstances described, but respond that the specific circumstances described do not, and will not, occur in the real world, that the scenario is therefore ultimately hypothetical, and not applicable to any practical discussion of torture. De Wijze is ready for us:

Firstly, there is no question that real life examples of TBS do occur. Perhaps, and thankfully, not as frequently as advocates of justified torture tend to suggest, but that they do arise is undeniable. Consider the following case reported in the Israeli newspaper Ha'aretz.

A suicide bombing was narrowly averted in Haifa (Israel) yesterday morning when the would-be perpetrator was arrested shortly before carrying it out. The drama ... began when police, acting on specific intelligence information about a planned attack in Haifa, arrested a number of Palestinians who had been staying in the city illegally. One 18-year-old from Samaria was arrested ... and when questioned, he admitted that he had hidden explosives for use in a suicide attack [and] directed [police] to an abandoned building where they found a belt containing several bombs that the Palestinian had planned to strap to his body and set off.... [23]

It is not clear from the newspaper report what techniques or form of questioning was used to elicit the information that prevented a suicide attack, but given the time scale and possible disastrous consequences of not obtaining this information, here we have a genuine actual example of a TBS.[24]

Footnote 24 reads as follows:

This claim will be rejected by those who insist that any genuine case of TBS requires that we must be certain that (a) the right person is tortured (i.e. the terrorist who knows of the bomb's location), and that (b) this torture will provide the needed vital information to prevent the bomb's detonation. However, Luban and others insist that these certainties can never exist in the real world of counter-terrorism, hence there can never be a realistic case of the TBS. These conditions are too strong. The Israeli example does cross the required threshold for a genuine TBS since what is needed in all such cases is a reasonable expectation rather than cast-iron certainties. (This principle rightly is adopted within the criminal justice system – where the guilt of those accused must be proved beyond reasonable doubt rather than with absolute certainty. If the latter was demanded then no one -or very few indeed - could be justly convicted of committing a crime.)

This will simply not do. Given the global taboo on torture, to the extent that even governments which practice it routinely deny doing so vehemently, the claim that torture might be justified in certain circumstances is an extraordinary one, and extraordinary claims require extraordinary evidence. Indeed, De Wijze's framing of the Ticking Bomb Scenario leaves little room for doubt: he writes "the security forces have captured a terrorist who knows of a bomb." The detainee is—not "might be," is—a terrorist who knows—not "might know," knows—the location of the bomb. The example from the Stanford Encyclopedia of Philosophy uses similar language. Thus, De Wijze has established a high standard of certainty on the part of the security forces (presumably to make the Ticking Bomb Scenario all the more compelling), but then complains that those same conditions are "too strong." This is known as "shifting the goalposts," and it's dishonest.

In fairness to the Ticking Bomb Scenario, it is not always presented with as high a degree of certainty as De Wijze does. A leader in The Economist in January 2003 put it as follows:

Suppose you know that there is a bomb about to go off which could claim thousands of victims. You have good reason to believe that a prisoner knows where it is, and that torture may force him to tell. Would you allow him to be tortured? Most people, however reluctantly, answer “yes”.

This is a significantly more qualified wording, but nevertheless still quite compelling. But does the example of the planned Haifa attack measure up even to this watered-down version? Well, no. Let's look at that Haaretz article again:

[P]olice, acting on specific intelligence information about a planned attack in Haifa, arrested a number of Palestinians who had been staying in the city illegally. One 18-year-old from Samaria was arrested ... and when questioned, he admitted that he had hidden explosives for use in a suicide attack [...]

In this situation, the police did not limit itself to picking up suspects whom they had reason to believe might be involved in the planned bombing and interrogating them for the purpose of discovering the location of the bomb. Rather, they rounded up a bunch of potential suspects and initially subjected them to interrogation to determine whether any of them even had anything to do with the planned attack. Haaretz reports that one of those arrested turned out to be involved in the planned attack (in fact, he was the prospective bomber), but since no mention is made of accomplices, we can reasonably assume that the remainder of the Palestinians hauled in had nothing to do with it. Since the Israeli security forces did not know initially which (if any) of the arrestees was involved, it's more that likely that all of them were subjected to the same treatment. This treatment may or may not have involved "physical coercion" (the Israelis prefer not to use the word "torture") but either way, it does not support the contention that this situation met the conditions set out in the Ticking Bomb Scenario. For, given the wording of the Haaretz article, there are two possible scenarios: either the bomber was made to confess without resorting to torture, which negates the element of the Ticking Bomb Scenario that torture is the only way by which the information might be extracted. Alternatively, the Israeli security forces subjected all the arrestees to "physical coercion" (not implausible, given the urgency of the situation and the Shin Beit's reputation of using torture as a matter of routine on Palestinian detainees), in which case the information came at the price of the human rights of not only the bomber, but also of the remaining arrestees, all of whom were innocent of involvement in the bombing.

It also deserves mention in this context that the death toll of any single Palestinian terrorist bombing in Israel is often in the single digits, and has to my knowledge never exceeded 30 (the Park Hotel in Netanya on 27-Mar-2002). I acknowledge that this sounds callous, but part of the emotional appeal of the Ticking Bomb Scenario is that it balances the human rights of one person (reasonably believed to be a terrorist) against the lives of thousands of civilians. "Thousands" is the number used in the Stanford example as well as The Economist's, and De Wijze himself even adds another digit, stating: "It requires a rather fanatical devotion to moral principles to insist that no violation is permitted even at the cost of tens of thousands of lives" (emphasis mine). Even conceding that point, it requires significantly less fanaticism to insist that it is impermissible to torture one person—even one reasonably believed to be a terrorist—in order to preserve maybe two dozen lives. It is even less fanatical (I would say not at all) to insist that the safeguarding of one or two dozen lives does not justify the torture of a comparable number of detainees, all but one or two whom are almost certainly innocent of involvement in the bomb plot.

As I said, downplaying the number of casualties sounds callous; that is precisely the effect the "numbers game" is supposed to have. To illustrate, a speaker who wishes to establish that the Allied bombing of Dresden was a wicked act may invoke the estimated death toll of 200,000 or more. His interlocutor may point out that that figure has long been discredited, and that reputable sources place the number of dead between 25,000 and 35,000; significantly fewer than the first speaker's figure. In response, the first speaker will wave away the discrepancy, stating that the exact figures don't matter, it's still a lot, and how can the other person be so callous as to reduce human lives to mere numbers? This is plainly dishonest: the original speaker invoked the higher number for a reason, namely to elicit a more vehement emotional response from his audience; a response he evidently did not feel he would achieve had he cited the lower casualty estimate, otherwise why did he not cite that figure in the first place? Frankly, I find this tactic despicable. So it is with the Ticking Bomb Scenario as presented by De Wijze; having initially used hypothetical fatality projections ranging in the multiple thousands to make his case, it is an act of rank dishonesty to tacitly reduce that figure to less than a percent of what it was and then pretend we're still talking about the same (type of) scenario.

If anything, the Haifa example perfectly illustrates the dangers of "mission creep" of which critics of the Ticking Bomb Scenario warn, namely that once torture is deemed permissible, albeit initially only in exceptional circumstances and subject to stringent restrictions, it does not take long for those circumstances and restrictions to erode. Again, De Wijze himself goes from torturing one man who is reasonably believed to be involved in the bomb plot for the sake of saving tens of thousands of lives, to torturing an unspecified number of detainees, the majority of whom (perhaps all) are almost certainly innocent of involvement, for the sake of saving two or three dozen lives at most; all this in the space of half a page. From my perspective, De Wijze's piece alone forms a perfect example of why the Ticking Bomb Scenario is both intellectually and morally bankrupt.

Haditha, My Lai, etc.

Not surprisingly, Blogoslavia has been abuzz lately concerning the killing of up to 24 Iraqi civilians in the town of Haditha last November by American marines. Equally unsurprisingly, the overwhelming bulk of commentary on the matter has been highly tendentious, with the American pro-war types doing their best to trivialize the issue, while the anti-war and anti-American elements have been quick to draw comparisons with the My Lai massacre. Given that the investigation is still underway, both claims are premature, to say the least.

It has been established that on the early morning of 19-Nov-2005, a column of four Humvees from K company, 3rd Battalion, 1st Marine Regiment was on patrol in Haditha. As the marines encountered a white taxi, they signalled it to stop. Then, an IED hidden in the roadside went off, killing the driver of the rear Humvee, LCpl Miguel Terrazas, and wounding two others. The exact nature of what transpired next is as yet unclear. My surmise—and I must stress it is no more than that—is that the marines' immediate reaction was to reason that the IED was most likely detonated manually (since it struck the last vehicle in the column) and that therefore the insurgent who triggered it must be within line-of-sight. Likely, they also suspected that the taxi was part of the trap, intended to cause the patrol to slow down or, ideally, halt in the blast zone, thus making them easier targets. Accordingly, they ordered the taxi's five occupants to get out of the vehicle and lie on the ground. Instead, the five Iraqis attempted to run away and the marines, interpreting this as a sign of guilt, shot them; unfortunately, it is at least as likely that the five were innocent, and ran precisely because they were afraid the marines suspected them of collusion in the attack. Following the shooting, the marines set about searching houses nearby. Their reason for doing so was legitimate, namely to kill or capture insurgents involved in the bombing who might have taken up position in one of the houses, but in the process, anger got the better of adherence to the Rules of Engagement. Likely, they told themselves and each other that the occupants of the houses, even if not actively complicit, must have been aware of the insurgents installing the IED, and since they had not tried to warn the Americans, they wished harm upon Americans and were at least indirectly complicit in Terrazas' death, and accordingly no regard was given to their lives in the aggressive house-clearing. Tempting as this line of thought may be, those of us with the luxury of detachment might point out that, given the insurgents' disregard for non-combatants, the life of any civilian who tried to hamper an insurgent attack by warning the Americans would have been forfeit, along with those of his or her family. The bottom line is that I suspect the marines in question did indeed commit a series of violations of international humanitarian law. If so, this is inexcusable, but that does not, ipso facto, make Haditha into a latter-day My Lai.

Still, there is some purpose to be served by bringing up My Lai, even if only as an example of how armies should not handle possible violations of international humanitarian law by their own personnel. My Lai remains a stain on the reputation of the American armed forces in general, and the US Army in particular, not only because of the massacre itself, but because of its subsequent handling. In his book After Tet: The Bloodiest Year in Vietnam, Ronald Spector states:

For almost a year the truth of what happened at My Lai was effectively concealed by commanders and their staffs within the Americal Division. An official Army inquiry, headed by Lieutenant General William Peers, concluded that the coverup extended to every level of the division's command structure.

This included the battalion commander (Lt.-Col. Frank Barker), the brigade commander (Col. Oran Henderson) and the divisional commander (Maj.-Gen. Samuel Koster), all of whom bore command responsibility for the personnel involved in the massacre, and bore the duty to ensure the matter was properly investigated and those suspected of criminal behavior duly charged and court-martialled. By participating in the coverup, the officers in question made themselves accessories after the fact.

Dire as the situation was at this stage, the US Army still had the opportunity to salvage its reputation, namely by throwing the book at every man involved in the massacre and the coverup who were still subject to its jurisdiction*. This the Army singularly failed to do; six officers were actually court-martialled, only one of whom—Lt. William Calley—was actually convicted. Eleven other officers, including Maj.-Gen. Koster, were initially charged, but saw the charges against them dropped due to "lack of evidence." This was patently a whitewash, since it was beyond dispute that the massacre had taken place, that Koster bore command responsibility, and that nobody in the Americal division had been prosecuted for the crimes committed; these three facts alone should have been enough to convict Koster for "neglects to the prejudice of good order and discipline in the armed forces" (Uniform Code of Military Justice, section 934, article 134). Instead, the US Army chose to demonstrate for all to see that it was unwilling to police the behavior of its troops, and that, more than anything, is why so much odium remains attached to the name.

The fact is that there isn't an army in the world which hasn't had to deal with criminal behavior on the part of some of its troops, just as there is no country which is free of criminal activity on the part of some of its citizens. As I pointed out three years ago, British troops have committed their share of nastiness, in Iraq, Northern Ireland and elsewhere. In the wake of Operation "Restore Hope" in Somalia, it was revealed that Belgian, Italian and Canadian soldiers had tortured, raped and murdered civilians while their officers turned a blind eye or even (in the case of the Italians) took part. Personnel from numerous other armies have been implicated in various malfeasances while on deployments under the flag of the UN or some other international organization. And in all too many of these cases, inquiries were hamstrung, or the perpetrators got off with a slap on the wrist while their superiors, who were supposed to be responsible for maintaining and enforcing discipline, never even faced trial. I might add that such malfeasances are not the fault of the UN Department of Peace-Keeping Operations; the DPKO has to work with what the member states will contribute, and has no authority to discipline contributed soldiers for any malfeasances they may commit. That responsibility the member states have reserved to themselves, and one to which all too often they fail to live up. The problem does not lie with the UN; it lies with the inability of the member states' armies to instil in their soldiers, lower ranks and officers alike, the elementary notion that it's not okay to rape, torture and/or murder civilians. The Canadian commision tasked with investigating "the Somalia Affair" concluded that the abuses had occurred not as a result of the wearing of blue berets, but because the Canadian armed forces were (and probably still are, given the lack of genuine reform in the interim) "rotten to the core."

Nobody has the right to be smug, to pretend that My Lai, Abu Ghraib, and perhaps Haditha are somehow inherently and uniquely American. However, I believe the measure of an army is not whether its soldiers commit violations of international humanitarian law, but whether the organization is willing and able to deal with such transgressions in the proper manner, subjecting the culpable and responsible parties to the appropriate justice. The Pentagon's demand that Haditha be properly investigated is a hopeful sign that the US is not repeating the mistakes of My Lai, and unless and until a whitewash takes place, I will not take seriously any claim that it is. The jury, as they say, is still out. 

* - By the time the matter came to light in 1969, most of the enlisted men involved had been discharged, and under a Supreme Court ruling from 1955 (Toth v. Quarles) the armed forces could not themselves prosecute and try former servicemembers for crimes committed while serving in the armed forces (instead, the armed forces would have to turn the matter over to a federal prosecutor). Lt.-Col. Barker could no longer be prosecuted as he had died in a helicopter crash several weeks after the massacre took place.

The case against anti-personnel mines

Earlier this month, the contributors to ScienceBlogs were asked to blog on the question:

If you could cause one invention from the last hundred years never to have been made at all, which would it be, and why?

I came upon this via Orac's post on the topic and followed his link to Pharyngula's. The latter linked to a fair number of responses from other ScienceBloggers, one of which in particular gave me pause, namely John Lynch's post at Stranger Fruit. Lynch writes:

[M]y first impulse was to answer "cell phones" and [...] I then realized that it wasn't the phones but the idiots who use them (loudly) in public or when they should be concentrating on something else (driving, child care, listening to people ...).

That seems fair enough; after all, one cannot hold the technology responsible for the fact that people may abuse it. So having read the aforegoing, I was rather surprised, not so much by Lynch's final answer—landmines—but by the fact that he thought the answer "required no justification." It's the latter item with which I disagree; I think there's a good case to be made against landmines, and anti-personnel (AP) mines in particular, but it does need to be made. As any lawyer will tell you, there are two sides to every story (at the very least), and to make a convincing case against landmines, we have to properly understand the case in favor.

The first thing to acknowledge is that landmines can serve a legitimate military purpose, and can be used to do so in a comparatively ethical manner, provided certain restrictions and safeguards are observed. My service in the RNLA occurred five years before the entry into force of the "Ottawa Treaty," when Dutch troops were still being instructed in the principles of AP mine deployment. As far as the RNLA was concerned, while the purpose of mines as such was to render enemy personnel or materiel hors de combat by means of an explosion, their tactical application was to be laid in minefields, the purpose of which was not so much to inflict casualties as to rely on the threat of damage to personnel and equipment to force an enemy to slow or halt his advance into a given area, or to divert him away from that area. (As the astute reader will by now have deduced, landmines are by their static nature best suited for defensive warfare.) Because of this reliance on the threat of harm to deter the enemy (or at least give him pause), rather than actual harm, there is no impediment to clearly marking a minefield as such, for as long as the individual mines within the field are hidden, the enemy still has to either slow his advance to clear paths through the minefield, or risk incurring casualties if he presses on. Marking minefields has the added advantage of alerting non-combatants, and ideally one would also cordon off the field with barbed wire so as to make it inaccessible to all but those determined to enter the area. In addition, RNLA doctrine (and that of any army which pays a least lip service to the laws of warfare) required that minefields be laid in locations under observation by (and within firing range of) friendly units, and that any unit laying a minefield record the location and number of mines laid in the field, and that it submit that record to the higher echelon, in order to facilitate the clearing of the field at a later date.

If restrictions and safeguards similar to the ones I've described are used, the use of landmines can be as legitimate as that of any other weapon. Indeed, they are arguably the most humane method of deterring international conflict, for a clearly demarcated minefield in principle threatens to harm only an aggressor's armed forces, whereas something like a nuclear deterrent almost inevitably involves inflicting non-combatant casualties. So why all the fuss?

The short answer, of course, is that the legitimate applications for landmines are very limited, and even then it takes a lot of care and effort to prevent them from becoming a hazard to non-combatants, possibly for decades to come, long after the hostilities have ceased. If we introduce gross negligence or wilful malice into the mix, this possibility all too easily becomes a near certainty. A fundamental principle of the laws of warfare, both customary and codified, is proportionality. That is to say, the justifiability of any given action or method of warfare depends on whether the military advantage gained is in reasonable proportion to the amount of damage inflicted as a result. Because landmines remain a threat for so long, there is no way to accurately assess at the time of its being laid how much damage it might potentially do if left uncleared. This is not limited to physical harm to human beings, but also to wild or domestic animals, and there is an economic cost if the mined area is suitable for growing crops or grazing livestock and is rendered unusable. And, of course, one can cite numerous examples, such as Afghanistan and Iraqi Kurdistan, where mines were laid (often by the simple expedient of scattering them from aircraft) for this very purpose.

To sum up, then, landmines have legitimate uses, but their benefits are far outweighed (especially in the case of AP mines) by the harm caused by negligent or malicious employment. So on balance, I do agree with John Lynch (and the parties to the Ottawa Treaty) that the world would be better off without them. On balance. Still, it deserves mention that the problem lies not with the technology itself, but with the people willing to put it to bad use. The only difference between landmines and cellular phones, morally speaking, is that the benefits of cel phones outweigh the drawbacks.